(Bloomberg) -- Aetna Inc.’s proposal to salvage its $37 billion takeover of Humana Inc. by selling assets to a smaller company isn’t convincing the Justice Department, which told a federal judge that the remedy poses risks for seniors who depend on Medicare.

The insurer that Aetna wants to sell assets to, Molina Healthcare Inc., is unlikely to replace the competition that would be lost from the merger, Justice Department lawyer Craig Conrath said Monday as a U.S. antitrust trial seeking to block Aetna’s acquisition of Humana kicked off in Washington.

"Molina would be no Aetna or Humana," Conrath told U.S. District Judge John D. Bates. "It’s the consumers -- seniors -- who face the risk."

The Justice Department sued Humana and Aetna in July, the same day it filed a complaint seeking to halt Anthem Inc.’s $48 billion acquisition of Cigna Corp. The antitrust lawsuits are aimed at preventing concentration among the biggest U.S. health insurers and protect competition in an industry that President Barack Obama reshaped with the 2010 Patient Protection and Affordable Care Act.

Aetna shares fell three percent to $129.45 while Humana dropped 2.3 percent to $208.83.

Market Share

The government argues the Aetna-Humana deal would eliminate competition between the insurers in 364 counties in 21 states and likely force seniors to pay higher premiums for Medicare Advantage, the government-subsidized insurance program for the elderly.

The Justice Department says any attempt to restore competition by Molina’s entry fails because Molina wasn’t successful in its previous foray into the Medicare market. It once offered Medicare Advantage plans in 63 counties and now offers plans that enroll only 424 people, the government said.

Aetna counters that the Medicare market is much larger than the Justice Department claims because it includes both Medicare Advantage plans and original Medicare, providing more choice for seniors than the government portrays. The U.S. view also ignores the power of the Center for Medicare and Medicaid Services, which oversees the program, to regulate the market, Aetna says.

The government argues that Medicare Advantage is a distinct market partly because seniors rarely switch, giving the combined company more power over that market because the deal would eliminate one of their options. About 78% of Medicare Advantage enrollees remain with that program from year to year, according to 2013-14 data, said Richard Frank, a Harvard University health-care economics professor, and the government’s first witness. Frank, a former U.S. Department of Health and Human Services official, testified that just 11% will voluntarily change carriers, five percent due so involuntarily and three percent die. Just two percent are likely to transfer to traditional Medicare, he said.

Even if the markets were separate, Aetna says the asset sale to Molina, with revenue of $14 billion in 2015, would establish a robust competitor against a combined Aetna and Humana.

"This isn’t some feeble little company," Aetna lawyer John Majoras said.

The other market at issue in the lawsuit is the public exchanges established by Obamacare where individuals buy insurance. Hartford, Connecticut-based Aetna in August announced it would stop selling Obamacare coverage in 11 of the 15 states in which it participated in the program, including all 17 of the Florida, Georgia and Missouri counties where the U.S. has claimed its merger with Humana would decrease competition.

QuickTake: Obamacare threatened with repeal

The U.S. argues that Aetna’s withdrawal was aimed at undermining the government’s case and said that nothing prevents Aetna from re-entering those markets after sitting out a year.

"The court shouldn’t look at the closed sign, but at the store behind it," Conrath said.

While the ACA was meant to make health insurance more accessible and more affordable to tens of millions of people who lacked coverage, the law has been beset by legal and political opposition. Enrollment has fallen short of estimates and financial losses have prompted some companies to withdraw from the market.

Majoras, Aetna’s lawyer, said the decision to leave the exchanges was driven entirely by financial reasons. The insurer’s losses "were huge," he said. With Aetna out of the exchanges, they shouldn’t be part of the government’s case, he said.

"There is no competition," Majoras said. "There’s nothing to fix here."

Register or login for access to this item and much more

All Digital Insurance content is archived after seven days.

Community members receive:
  • All recent and archived articles
  • Conference offers and updates
  • A full menu of enewsletter options
  • Web seminars, white papers, ebooks

Don't have an account? Register for Free Unlimited Access